Jim Porter: California Legislature addresses abusive ADA lawsuits

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TRUCKEE, Calif. - The California Legislature significantly modified its Americans with Disabilities Act, known as the Unruh Civil Rights Act, effective September 19, 2012. California's 1987 ADA law is in addition to the federal ADA adopted in 1990.

Abusive Lawsuits

Nearly 40 percent of the nation's ADA lawsuits are filed in California although the State is home to only 12 percent of the country's population. Hundreds of articles describe so called "shakedown" lawsuits filed by ADA claimants, mostly against small businesses.

Both federal and state ADA laws regulate in extreme detail what business premises must do to be ADA compliant - from the height of bathroom mirrors and TP dispensers to the maximum height of door thresholds and carpet pile. The mandates are specific and endless, so much so it is difficult to be 100 percent compliant.

As a result of the perceived abuse of ADA laws, significant changes were made to the Civil Code, including the following:

A. Pre-Litigation Demand Letter

Pre-litigation demand letters are still allowed but they must now identify facts sufficient to alert the building owner and tenant of specific ADA deficiencies and describe how the non-compliance interferes with the claimant's access, plus include the dates when the claimant encountered the barriers.

Claimants may not demand money to avoid a lawsuit, a practice generally viewed as extortion. A copy of the pre-litigation letter must be sent to the State Bar and California Commission on Disability Access.

B. ADA Complaint

Civil Code 55.3 requires a plaintiff to verify the Complaint under penalty of perjury, and set forth the specific facts upon which the ADA claim is based. "Stacked" claims where one person makes many visits and files multiple claims in a short timeframe must be explained to the judge, i.e. why so many visits?

C. Reduction in Damages

The new law reduces the mandatory $4,000 per claim in certain circumstances and allows the business owner 30 and sometimes 60 days after service of the Complaint to cure accessibility violations.

D. New Lease Disclosures

For commercial properties leased after July 1, 2013, landlords must notify tenants if the property has undergone a Certified Access Specialist (CASp) inspection. Take home point: Consider having your commercial property inspected by a CASp specialist. And upgrade. Make sure your parking lot - at a minimum - meets ADA criteria.

E. Porter's Take

The new ADA law in California is controversial - like everything else in the Golden State. While I support ADA laws, I support this legislation as well. The changes do not gut the disability requirements and should help curb the handful of serial ADA litigants who make a living suing small businesses.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He was the Governor's appointee to the California Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, foreclosures, mediation and other transactional matters. He may be reached at porter@portersimon.com or at the firm's website www.portersimon.com.